Today, the Senate Judiciary Committee’s antitrust subcommittee is having a hearing to discuss two bills that would “rein in” app stores and disallow regular protections for consumers. We filed a statement for the record for this hearing, highlighting a few reasons why those bills—the Open App Markets Act (OAMA, H.R. 7030/S. 2710, 117th Cong.) and the American Innovation and Choice Online Act (AICOA, H.R. 3816/S. 2992, 117th Cong.)—are a bad idea from the small app company perspective. Instead, we urge Congress to consider a strong, national privacy law to keep users safe online.

Contrary to federal court precedent and the dynamic state of the app economy, the Committee continues to rely on a stilted characterization of competitive conditions. The minority staff memo describes Apple’s and Google’s app stores as “parallel monopolies in the market for app distribution,” which cavalierly tosses aside a couple of foundational factors: first, that it’s a contradiction in terms to suggest that there are two monopolies in the same “app distribution” product market; second, that Apple and Google are not even a duopoly in app distribution because the market is wider than that; and third, that federal courts reject characterizations of iOS or Android distribution as being their own separate product markets (if courts accepted such a definition, then each would have monopoly power over distribution on apps running on their platforms).

Because Google Play competes with the Apple App Store for both developers and individual consumers (both sides of the market), calling each of them a monopoly in their own separate markets is inconsistent with the law and a bad basis for drafting new laws that expand antitrust. While there is a persistent tendency to include only Apple and Google in the list of app stores for developers, the market is much wider. But even if we focus only on the two largest app stores that have captured the Committee’s attention, we note that they each provide an integrated framework for app developers to engage and secure visibility with the 3.4 billion app users worldwide. These app stores are among the most popular because they are integrated with wrap-around services like developer tools, accessibility features, and application programming interfaces (APIs). And if these app stores have as much of the app distribution market as the Committee suggests, it’s even more important not to require them to carry bad actors, since they enforce important consumer protection requirements that affect such a large number of people who use their stores.

During the Senate Judiciary Committee’s February hearing titled “Protecting Our Children Online,” we heard about the many challenges facing children, teens, parents, and law enforcement in ensuring safety and mental well-being for young people when engaging with online platforms. However, by requiring platforms to carry—and presumptively prohibit them from taking any corrective measures against—apps that either ignore consumer protections or actively pursue consumer harm as a business model, OAMA and AICOA would greatly hinder consumer protection efforts. Bad actors often pose unnecessary risks to privacy and data security for children under the age of 13, which app marketplaces take routine steps to mitigate. AICOA and OAMA’s prohibitions go beyond eliminating the first line of defense children have on their smart devices—app store developer guideline enforcement—by subverting federal and state consumer protection enforcement. In cases like the Federal Trade Commission’s (FTC’s) settlement with Epic Games, clear harm to children and families could have been avoided by stronger platform enforcement. Weakening enforcement through OAMA or AICOA would run counter to Congress’ goal of protecting children online.

OAMA and AICOA would also complicate vetting and removing from circulation spyware, stalkerware, and other malware. We called attention to the FTC’s 2021 consent order with stalkerware maker SpyFone as evidence that bills to prohibit security measures on mobile software platforms should be avoided. Unfortunately, OAMA and AICOA as considered in the 117th Congress include provisions that would bar a software platform from preventing, removing, or restricting access by any app, unless 1) it can overcome the technical limitations inherent in being unable to vet software, and 2) it can offer a rather narrow affirmative defense with improbable evidentiary burdens. By presuming the illegality of removing or blocking access by any app, OAMA and AICOA would require software platforms to maintain a default position of allowing any app and any app store on consumers’ devices, regardless of the risks they pose to privacy and security. The attacks we read about would soon become daily threats we must constantly avoid on our own devices, which would seriously undermine consumer trust in the app ecosystem from which our member companies benefit.

App stores also benefit competition in the marketplace by giving small developers access to services that reduce overhead, cost-effective consumer trust mechanisms, and access to a global market. Increased competition among platforms has provided an unprecedented avenue for entrepreneurship. With an internet connection and coding skills, anyone can access millions of customers via software distribution platforms, thus, the mobile app economy provides an incredible means for empowerment to those in disadvantaged communities across America.

The benefits of app store vetting and business services are significant. Congress should not force platforms to carry malware, spyware, and other bad actors in the guise of “reining in” platforms. OAMA and AICOA would decrease consumer privacy, impede children’s safety online, and disadvantage small businesses. The App Association urges Congress to consider legislation to enhance consumer trust in digital markets while addressing observed harms, such as a federal data privacy and security law.